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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.8057 OF 2015
C/W
M.F.A. NO.8058 OF 2015 (MV-D)
M.F.A. NO.8057 OF 2015
BETWEEN:
UNITED INDIA INSURANCE CO., LTD.,
REGIONAL OFFICE
KRISHI BHAVAN BUILDING
NRUPATHUNGA ROAD
BENGALURU - 560 009
REP. BY ITS MANAGER SMT.P.NAVAMANY.
... APPELLANT
(BY MR. ANUP SEETHARAMARAO, ADV., FOR
MR. B.C. SEETHA RAMA RAO, ADV.,)
AND:
1. SRI NARAYANA BHAT
AGED ABOUT 86 YEARS
S/O LATE SHANKAR BHAT.
2. SMT. SARASWATHI
AGED ABOUT 76 YEARS
W/O SRI NARAYANA BHAT.
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3. SMT. DEEPTHI
AGED ABOUT 30 YEARS
W/O LATE KRISHNA KUMAR.
ALL ARE R/AT D.NO. 4/44
SRI SKANDA HOUSE, KUMBURU ROAD
ALAPE POST, PADIL, MANGALURU-575001.
4. SRI MATHAR PASHA
S/O REHEMATH
AGED ABOUT 38 YEARS
RESIDENT OF RAMARA KOPPALU
HOSA THOTA HOBLI, ALURU TALUK
HASSAN-573401
(OWNER OF LORRY NO. KA.13/3556).
... RESPONDENTS
(BY MR. SANDESH SHETTY, ADV., FOR R1 & R2
R3 SERVED
V/O DTD:7.11.2019 NOTICE TO R4 D/W)
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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.06.2015 PASSED IN MVC NO.778/2009 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, AND MACT, DAKSHINA KANNADA, MANGALURU, AWARDING COMPENSATION OF RS.68,85,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION. M.F.A. NO.8058 OF 2015 BETWEEN:
UNITED INDIA INSURANCE CO., LTD., REGIONAL OFFICE KRISHI BHAVAN BUILDING NRUPATHUNGA ROAD BENGALURU-560 009 REP. BY ITS MANAGER SMT. P. NAVAMANY.
... APPELLANT (BY MR. ANUP SEETHARAMA RAO, ADV., FOR MR. SEETHA RAMA RAO B.C. ADV.,) 3 AND:
1. SRI. NARAYANA BHAT AGED ABOUT 86 YEARS S/O LATE SHANKAR BHAT.
2. SMT. SARASWATHI AGED ABOUT 76 YEARS W/O SRI NARAYANA BHAT.
3. SMT. K. MAMATHA AGED ABOUT 38 YEARS W/O LATE SHANKARA BHAT.
4. MISS. VANISHREE AGED ABOUT 15 YEARS D/O LATE SHANKARA BHAT.
5. MISS. DEEPASHREE AGED ABOUT 11 YEARS D/O LATE SHANKARA BHAT.
6. MISS. NIDHINSHREE AGED ABOUT 9 YEARS D/O LATE SHANKARA BHAT.
RESPONDENTS 4 TO 6 BEING MINORS REP. BY THEIR MOTHER AND NATURAL GUARDIAN i.e., FIRST RESPONDENT HEREIN. ALL ARE R/AT D.NO.4/44, "SRI SKANDA HOUSE"
KUMBURU ROAD, ALAPE POST PADIL, MANGALURU-575001.
7. SRI. MATHAR PASHA S/O REHEMATH AGED ABOUT 38 YEARS R/O RAMARA KOPPALU HOSA THOTA HOBLI, ALURU TALUK HASSAN-573401 (OWNER OF LORRY NO KA.13/3556).
... RESPONDENTS (BY MR. SANDESH SHETTY T, ADV., FOR R2, R3 & R4 4 R1 SERVED R5 - R6 ARE MINORS REP. BY R1)
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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.06.2015 PASSED IN MVC NO.779/2009 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE AND MACT, D.K. MANGALURU, AWARDING COMPENSATION OF RS.20,50,000/- WITH INTEREST @6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT M.F.A.No.8057/2015 and M.F.A.No.8058/2017 have been filed by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) against the judgment dated 15.06.2015 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the tribunal' for short). Since, both the appeals arise out of the same accident and from the same judgment, they were heard analogously and are being decided by this common judgment.
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2. Facts giving rise to the filing of the appeal briefly stated are that on 26.10.2007, the deceased Krishna Kumar and the deceased Shankar N Bhat were proceeding in a car bearing registration No.GJ-6-AH-
122. When they reached near Sanabagate, a goods lorry bearing Registration No.KA-12-3556 which was being driven by its driver in a rash and negligent manner, came from the opposite direction and dashed against the vehicle of the deceased. As a result of the aforesaid accident, the deceased sustained multiple grievous injuries and succumbed to the same.
3. The claimants of the deceased Krishna Kumar in MFA 8057/2015 thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 36 years at the time of accident and was engaged in the business of electrical works and was earning a sum of Rs.7,50,000/- per annum whereas the claimants of the deceased Shankar N Bhat in MFA 8058/2015 also filed a petition 6 under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 40 years at the time of accident and was engaged in the real estate business and was earning a sum of Rs.40,000/- per month. The claimants claimed compensation to the tune of Rs.65,00,000/- along with interest. It was further pleaded in both the claim petitions that accident took place solely on account of rash and negligent driving of the lorry by its driver.
4. The insurance company filed written statement in both the petitions in which, inter alia, in which the mode and manner of the accident was denied. It was pleaded that the accident did not occur on account of the negligence of the driver of the goods lorry. The ages, occupations, incomes and injuries sustained by the claimant was denied. It was also pleaded that liability of the insurance company to the compensation, if any, is subject to the terms and conditions of the policy. The age, avocation and income of the deceased was also 7 denied and it was pleaded that the claim of the claimants is exorbitant and excessive.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined Narayana Bhat (PW1), Balakrishna Gowda (PW2) and Mahabaleshwar Bhat (PW3) and got exhibited documents namely Ex.P1 to Ex.P24. The respondents examined Iyyar Swamy (RW1), Mohammed Kabeer (RW2) and got marked copy of the insurance policy as Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the goods lorry by its driver, as a result of which, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants in MFA 8057/2015 and MFA 8058/2015 to be entitled to a compensation of Rs.68,85,000/- and Rs.20,05,000/- respectively along with interest at the rate of 6% p.a. 8 Being aggrieved, these appeals have been filed by the insurance company.
6. Learned counsel for the insurance company submitted that the Tribunal erred in making an addition to the tune of 50% instead of 40% to the income of the deceased on account of future prospects when it is clear from Ex.P20 Income Tax Returns that the deceased Krishna Kumar was self-employed and not in a permanent job. It is further submitted the Tribunal erred in making an addition of 50% instead of 25% to the income of the deceased Ex.P10 IT returns clearly disclosed that the deceased Shankar N Bhat was aged 41 years at the time of the accident and that the decased Shankar N Bhat was self employed an not in a permanent job. It is further submitted that the Tribunal erred in applying a multiplier of '16' instead of '15' when the age of the deceased was 36 years in MFA 8057/15 and a multiplier of '15' instead '14' when Ex.P10 Saral 9 Forms clearly disclose that the age of the deceased Shankar N Bhat was 41 years.
7. We have considered the submissions made by learned counsel for the insurance company and have perused the record. The only question which arises for our consideration in this appeal is with regard to the quantum of compensation. Now we may advert to the quantum of compensation to be assessed in MFA 8057/2015. It is pertinent to note here that the income assessed by Tribunal at Rs.4,25,000/- per annum is not disputed by the insurance company.
8. In view of the law laid down by the Constitution Bench of the Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, 40% of the amount has to be added on account of future prospects as the deceased Krishna Kumar was self-employed. Thus, the annual income comes to Rs.5,95,000/-. Since, the number of dependents is 3, therefore, 1/3rd of the 10 amount of the amount has to be deducted towards personal expenses and therefore, the annual dependency comes to Rs.3,96,667/- Taking into account the age of the deceased which was 36 years at the time of accident, the multiplier of '15' has to be adopted. Therefore, the claimants are held entitled to (Rs. 3,96,667x15) i.e., Rs.59,50,005/- on account of loss of dependency.
9. In view of laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.' (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant's are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.1,20,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of 11 loss of estate and funeral expenses. Thus, in all, the claimants in MFA 8057/2015 are held entitled to a total compensation of Rs.61,00,005/-. Needless to state that the aforesaid compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made.
10. Now we may advert to the quantum of compensation to be assessed in MFA 8058/2015. It is pertinent to note here that the income assessed by Tribunal at Rs.1,20,000/- per annum is not disputed by the insurance company. The Tribunal has on the basis of Ex.P9 PM Report has concluded that the age of deceased to be 40 years at the time of accident. However, it is pertinent to note that from the perusal of Ex.P10 Saral Form, it evident that the date of birth of the deceased is 05.03.1967. Therefore, in view of the admission of the aforesaid document by the claimants, the age of the deceased Shankar N Bhat is taken as 40 years 7 months. In view of the law laid down by the Constitution 12 Bench of the Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, 25% of the amount has to be added on account of future prospects as the deceased Shankar N Bhat was self-employed and aged above 40 years. Thus, the annual income comes to Rs.1,50,000/-. Since, the number of dependents is 6, therefore, 1/4th of the amount of the amount has to be deducted towards personal expenses and therefore, the annual dependency comes to Rs.1,12,500/- Taking into account the age of the deceased which was 40 years 7 months at the time of accident, the multiplier of '15' has to be adopted in view of the law laid down by the Supreme Court in SARALA VERMA VS. DELHI TRANSPORT CORPORATION (2009) 6 SCC 121. Therefore, the claimants are held entitled to (Rs. 1,12,500x15) i.e., Rs.16,87,500/- on account of loss of dependency.
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11. In view of laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.' (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant's are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss of love and affection. Thus, the claimants are held entitled to Rs.2,40,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimant is held entitled to a total compensation of Rs.19,57,500/-. Needless to state that the aforesaid compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made. To the aforesaid extent, the judgment passed by the Claims Tribunal in MVC 778/2009 and MVC 2770/2009 is modified.
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Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE ss